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Missing Evidence and CPR35.14 - Dr Mark Burgin

28/10/19. This is part of a series of articles by Dr. Mark Burgin. The opinions expressed in this article are the author's own, not those of Law Brief Publishing Ltd, and are not necessarily commensurate with general legal or medico-legal expert consensus of opinion and/or literature. Any medical content is not exhaustive but at a level for the non-medical reader to understand.

Dr. Mark Burgin BM BCh (oxon) MRCGP discusses how a one-size-fits-all policy for medical records review increases costs and allows a minority of solicitors to game the system.

Personal injury reports rarely require a medical records review as the issues are simple and they rarely change the opinion of the experts.

This is despite over 50% of all medical records reviews uncovering a history of relevant and significant symptoms that the claimant had forgotten.

Experts already take into account the likely degenerative processes from their age, findings on clinical examination and response to treatment.

Review of records is only required when a claimant insists that the expert is in error or the case is too complex for a single expert to provide opinions.

Missing evidence

Most solicitors will promptly provide GP and physio records but some are reluctant to provide engineering evidence (such as photos of the car or repair bill).

Requests for psychological records such as counselling records or health visitor/school nurse records are met with greater resistance.

Some solicitors state (relying upon their client’s honesty) that their client does not have any history of problems and will only provide post-accident records.

The risk with this approach is that where the medical records show that the claimant was mistaken about the history (as is common) the third party can go for fundamental dishonesty.

CPR35.14

The same solicitors who are unkeen to provide the medical records are also those who fail to provide the court directions and the third-party details.

The issue has been raised on a number occasions with MedCo on the grounds that the solicitors may compromise the quality of reports, increase costs and influence experts.

In these cases the expert is prevented from asserting their right to bring the issue to the attention of the courts in direct interference with their duty to the court.

Some experts have pointed to the case of Dr Zafar as an example of the consequence of the imbalance of power between solicitors and experts.

Disastrous cases

This is more than just a matter of technical significance or a discomfort for the expert as I have been involved in a number of cases which become a disaster.

The first report from the GP recommends several specialist expert reports but despite the complexity does not review the records.

The specialist experts attempt to review the GP records themselves and often miss material entries so get the wrong end of the stick.

They charge more because they spend many hours trying to review records that should be laid out completely in the GP report who is the expert of reading GP records.

Conclusions

Claimants frequently forget material issues that are present in their GP records which do not materially change simple PI reports.

In more complex PI reports particularly when the prognoses are challenged or when specialists are involved medical records review typically lead to a large change.

Refusal by a solicitor to permit the expert put questions to the court has no appeal system so the expert is unable to obtain missing records.

Since fundamental dishonesty has been available as a defence the defendants has used holes in expert’s report to attack the credibility of the claimant.

Doctor Mark Burgin, BM BCh (oxon) MRCGP is on the General Practitioner Specialist Register.

Dr. Burgin can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it. and 0845 331 3304 website drmarkburgin.co.uk

Expert’s right to ask court for directions 35.14 (1) Experts may file written requests for directions for the purpose of assisting them in carrying out their functions.

Experts’ right to ask court for directions 28. Experts may request directions from the court to assist them in carrying out their functions (CPR 35.14), for example, if experts consider that they have not been provided with information they require.

Image ©iStockphoto.com/dra_schwartz

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The opinions expressed in the articles are the authors' own, not those of Law Brief Publishing Ltd, and are not necessarily commensurate with general legal or medico-legal expert consensus of opinion and/or literature. Any medical content is not exhaustive but at a level for the non-medical reader to understand. 

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